The EDPS has published his Opinion on: (i) the Trade and Cooperation Agreement (TCA); and (ii) the agreement on security procedures for exchanging and protecting classified information.

The EDPS welcomes these two agreements. In particular, the EDPS notes that the TCA is based on respecting and safeguarding human rights and the parties’ commitment to ensuring a high level of protection of personal data.

Nevertheless, the EDPS regrets that the TCA fails to faithfully take over the EU’s horizontal provisions for cross-border data flows and for personal data protection. Such provisions, which the European Commission has repeatedly stated as non-negotiable, allow the EU to include measures to facilitate cross-border data flows in trade agreements while preserving individuals’ fundamental rights to data protection and privacy. Therefore, the EDPS states, in amending these horizontal provisions, the TCA creates legal uncertainty about the EU’s position on the protection of personal data in the context of trade agreements and risks creating friction with the EU data protection legal framework.

Wojciech Wiewiórowski, the EDPS, said: “The wording agreed with the UK on data protection and privacy must remain an exception. We strongly recommend that the European Commission reiterates its commitment to the horizontal provisions as the only basis for a future trade agreement with other non-EU countries and that personal data protection and privacy rights will not be up for negotiation.”

In his Opinion, the EDPS also comments on the EU-UK law enforcement and judicial cooperation in criminal matters. While welcoming the data protection safeguards introduced in the TCA, the EDPS regrets that certain safeguards are missing.

In addition, the EDPS highlights that the interim provision, which allows transfers of personal data between the EU and the UK without procedural safeguards as though the UK was still a member of the EU, should remain exceptional and not set a precedent for future TCAs with other non-EU countries. To read the EDPS’s press release in full and to access the Opinion, click here.